Summary
In Martin v. Board of Supervisors of Winston County, 1938, 181 Miss. 363, 386, 178 So. 315, 320, it was said that: "In dealing with boards or courts administrated by men unlearned in technical requirements, strict construction of their orders should not be had."
Summary of this case from Shipman v. North Panola Consol. School DistOpinion
No. 32966.
January 24, 1938. Suggestion of Error Overruled March 7, 1938.
1. INTOXICATING LIQUORS.
Where correctness of petition for local option election was not challenged at meeting of board of supervisors, and no appeal or certiorari was taken from board's order for election based on petition, board's fact finding in such order, that signatures on petition represented 20 per cent. or more of the qualified electors as required by statute, was conclusive on appeal (Laws 1934, chapter 171, section 2).
2. EVIDENCE.
The Supreme Court, asked to take judicial notice of 1935 primary election returns and to determine therefrom that petitioners for local option election did not constitute 20 per cent. or more of qualified electors, could not take judicial notice that persons voting in primary election were qualified electors.
3. INTOXICATING LIQUORS.
The manner of publication of notice for local option election is controlled by general statute requiring 30 days' notice of election on any matter affecting the entire county (Laws 1934, chapter 171, section 2; Code 1930, section 310).
4. INTOXICATING LIQUORS.
Six weeks' publication of notice of local option election, effected by order of clerk of board of supervisors rather than of election commissioners, without board's issuing commission to election commissioners directing the commissioners to hold election, was proper irrespective of applicability of general statute authorizing board of supervisors to call election, where election commissioners actually held the election in conformity with law (Laws 1934, chapter 171, section 2; Code 1930, section 310).
5. INTOXICATING LIQUORS.
The statute authorizing local option election on petition of 20 per cent. of qualified voters does not prohibit voter from authorizing some other person to sign petition for him rather than signing personally (Laws 1934, chapter 171, section 2).
6. INTOXICATING LIQUORS.
A fact finding of board of supervisors, in order calling local option election, that petition for election was signed by 20 per cent. or more of qualified voters, was conclusive on appeal with respect to whether petition was signed by voters personally (Laws 1934, chapter 171, section 2).
7. COURTS.
In order to support judgment of courts of special and limited jurisdiction, facts conferring jurisdiction must be affirmatively found to exist and should appear upon the record or minutes, whereas it is presumed that necessary jurisdictional facts existed where judgment was rendered by court of general jurisdiction.
8. INTOXICATING LIQUORS.
Where board of supervisors finds a jurisdictional fact, in support of judgment calling local option election, judgment is entitled to the same force and effect with respect to such fact as judgment of a court of general jurisdiction (Laws 1934, chapter 171, section 2).
9. MOTIONS. Officers.
Orders of boards or courts that are administered by men unlearned in technical requirements should not be strictly construed.
10. COUNTIES.
The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence, and though unskillfully drawn, will be legally sufficient if their meaning can be ascertained by fair and reasonable interpretation (Code 1930, section 310).
11. INTOXICATING LIQUORS.
Jurisdictional facts supporting a judgment calling local option election must appear in the record, but language in which they are recited need not be such as a skillful lawyer would use (Laws 1934, chapter 171, section 2).
12. STATUTES.
The operation of a law may depend on the vote of the people as a condition upon which the law shall come into operation.
13. CONSTITUTIONAL LAW. Intoxicating liquors.
The statute authorizing counties to prohibit sale of beer and wine by local election is not unconstitutional as unlawful delegation of legislative power (Laws 1934, chapter 171, section 2).
14. CONSTITUTIONAL LAW.
Where Legislature can prohibit the sale of a commodity altogether, no mere license of business of sale will render prohibition of such sale within a local territory unconstitutional as depriving licensees of property without due process.
15. LICENSES.
One seeking a license to sell commodity, sale of which Legislature could prohibit altogether, takes the license subject to the police power.
16. CONSTITUTIONAL LAW.
The calling of local election to prohibit sale of beer and wine within county was not unconstitutional as taking previous licensees' property without due process (Laws 1934, chapter 171, section 2).
17. LICENSES.
A license is not a "contract" but a mere privilege, revocable whenever public authority exercises its power of revocation.
APPEAL from the circuit court of Winston county. HON. JOHN F. ALLEN, Judge.
Z.A. Brantley, of Louisville, and L.F. Easterling, of Jackson, for appellant.
We take the position that the order of the board calling the election was but a preliminary step to the holding of the election, and that, whereas it is true, as held in the Mohundro case, 165 So. 124, that any taxpayer could have appealed from the order of the board calling the election, still they did not have to do so, but could wait until the election was held and then, at a meeting of the board which attempted to declare the result of the election and to put the proposition in force in the county, that all questions on the consideration of this matter could be brought up before the board to show that it had acted without jurisdiction, and that the necessary facts upon which the jurisdiction was attempted to be exercised for calling the election did not, in fact, exist. In other words, to show that twenty per cent of the qualified electors of said county had not signed the petition.
Bryant v. Board of Supervisors, 133 Miss. 714, 98 So. 148.
It will be observed that the order of the board ordering the election, of date March 4, 1937, does not sufficiently show on its face the jurisdictional facts prerequisite to the order of the election.
We contend that this court will take judicial notice of the votes polled in the 1935 primary election for officers, as contained in the reports of the Secretary of State, in Jackson, Mississippi. The information given to us by the Secretary of State on this question shows that on candidates for Governor for the first primary for Winston County the votes amounted to 6,064, and on the second primary to 5,993. As we counted the signers on these petitions in the record, there appear to be 1,205 signers. We think it is manifest from a consideration of the evidence of the circuit clerk before the board of supervisors that the board did not consider all of the names signed in the same handwriting.
We further call the court's attention to the fact that the board does not attempt in said order to find from evidence, such as the poll books of the county, the registration books and the sheriff's books, how many were qualified to vote in Winston County and how many qualified electors had signed the petitions in their own handwriting. The board can only act as a board upon the evidence brought before them or acquired by them jointly in an examination of the records to determine these necessary jurisdictional facts. Their mere ordering "that the said petition is properly signed by twenty per centum or more of the qualified electors" in our opinion on the face of the order is not sufficient, and for that reason the order is null and void.
Simpson County v. Burkett, 172 So. 329; Lowndes County v. Ottley, 112 So. 466, 146 Miss. 118; Ferguson v. Monroe County, 71 Miss. 524.
It is the policy of the law that the fullest hearing may be had on all questions and especially, as said in the Monroe case supra, where the effect of the election would be so momentous as to make that illegal which had been legal before, and to deprive petitioners who were licensed of their rights under their licenses and under the law to sell their products, the fullest inquiry should have been allowed by the board of supervisors; and, if it was determined that the petitions were not signed by the requisite twenty per cent of the qualified electors, all of the proceedings of the board should be vacated, and set aside and held for naught.
We think it cannot be questioned and will not be denied that no person can sign the names of other persons to said petition, with or without their consent.
Ferguson case, 71 Miss. 536.
The notice of election in this case purported to have been given by the board of supervisors and the chancery clerk, and not by the election commissioners.
Either it was necessary for the board of supervisors, under Section 310 of the Code of 1930, to prescribe the notice, give the notice and hold the election, or for the board to adjudge the jurisdictional facts, and order the election, and issue a writ of election to the election commissioners, who, under the general law (registration and election), are required to give the notice of the election and to hold the election and report the election as required by the general law.
Burkett case, 172 So. 329.
In the instant case, the board followed neither Sections 310 and 311, nor Section 6265, nor 6263 and other cognate statutes under Chapter 157, on Registration and Election of the Code of 1930.
James v. Wilkinson County, 150 Miss. 489, 117 So. 111.
Giving weight to that part of Chapter 171 of the Laws of 1934 "that, if any county, in an election held for that purpose under the general election laws of the state," and provided further that an election to determine whether such transportation, etc., of such beverages shall be excluded from any county in the state shall, on a petition of twenty per centum (20%) of the duly qualified voters in such county, be ordered by the board of supervisors thereof for such county only. It would, therefore, appear that it was the Legislature's intention and purpose that the election to be held under such section was to be held and conducted under the election laws of the state. These are set out under the head of "Registration and Election," Chapter 157 of the Code of 1930.
It seems apparent that the board of supervisors should order the election, issue the writ of election, and prescribe the form of the ballot, and, of course, receive the report of the election and pass the necessary order putting the proposition into operation in the county.
The board of supervisors did not find the jurisdictional facts. The board of supervisors did not issue that writ of election to the election commissioners, and did not provide that a certified copy of the order be delivered to the election commissioners. The board directed the clerk of the board to give the notice, instead of requiring the notice to be given by the proper officials, to-wit, the election commissioners.
Green v. Board of Suprs., Adams County, 161 So. 139, 172 Miss. 573.
The board did not prescribe the form of the ballot, as provided for by Section 311 of the Code of 1930.
The fact that the notice attempted to be given is attempted to be signed by the board of supervisors of Winston County by Claude Richardson, president of the board of supervisors, would add no validity thereto, because not shown on the minutes that the form of the notice was prepared, adopted, and shown on the minutes as the notice of the board to be given by the board; and, therefore, on this theory the order would be null and void.
Sections 310 and 6256, Code of 1930.
Section 310 is silent as to the kind of notice. The order of the board is silent as to the kind of notice to be given by the clerk. Therefore, we claim that, since the election on the beer question was to be held under the general election laws of the state, it was the intent and purpose of the Legislature that the voters should have all the notice possible, so that they might intelligently prepare themselves to ballot on the question, and that the Legislature in its wisdom contemplated that writ of election should be given under the election laws to the election commissioners, and that they, the election commissioners, should give the notice of the election as prescribed in Section 6265, as that best calculated to give the qualified electors of each precinct notice of the matter to be presented to them, "posting notice at the courthouse and at each election district in the county for as near thirty days as may be practicable; and the election shall be prepared for and held as in the case of a general election."
Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Cameron v. Whittington, 120 Miss. 595, 82 So. 311.
The board failed to issue a writ of election as contemplated by Section 6265 of the Code of 1930.
The order of May 4, 1937, attempting to declare the results of the election and to exclude said beverages from said county is null and void, because said order shows on its face that the said election was not ordered, held, conducted, and notice thereof given for the time and in the manner required by law.
Laying aside the question that might be raised that the power to tax and raise revenue, vested in the Legislature by the people, cannot be delegated back to the people, or defeated by any vote of the people, which it seems to us is a serious question, we still say that, inasmuch as some of the exceptors had state licenses for the sale of such beverages, issued under a different law of the Legislature imposing such privilege licenses, the Legislature itself could not delegate to the people of a county the right to abrogate or repeal any act of the Legislature.
Therefore, it necessarily follows, as the day follows the night, that the said act is unconstitutional, in that it attempts to vest in the qualified electors of a county the right and power to repeal another act, to-wit, the act imposing the privilege tax for the sale of the beverages.
State v. Harvey, 170 So. 154.
The point we are making here is that, inasmuch as the Legislature, under Chapter 127, Laws of 1934, imposed a privilege license for selling such beverages and fixed the amount thereof, and provided that the special licenses should authorize a licensee to conduct said business for twelve months, the Legislature itself could not delegate to the qualified electors of a county the right to repeal this chapter imposing a license, and that as long as any licenses to sell such beverages existed in the county, the result of the election could not take away from the holder of such license the right conferred by a different act of the Legislature to continue in said business.
State v. Harvey, 170 So. 155.
The proviso of this act attempting to give to the voters of any county the right to exclude the sale of the beverages and to make it illegal in any county is a clear legislative attempt to pass back to the people the power to make and repeal laws. It is a plain surrender of the lawmaking power to the people, contrary to the forms of democratic government and contrary to Section 33 of the Constitution. It seems to us that no other construction is justified.
State v. Harvey, 170 So. 156; Olds v. State, 101 Fla. 218, 133 So. 641; 1 Cooley on Constitutional Limitations, (8 Ed.) page 242; Parker v. Commonwealth, 6 Pa. 507, 47 Am. Dec. 480; State v. Geebreck, 5 Iowa 49; Thorne v. Kramer, 15 Barlow 112.
The order of March 4, 1937, is null and void on its face, in that it does not sufficiently adjudicate the jurisdictional facts, which under the law gave the board the power to proceed.
Robb v. Postal Tel. Co., 61 So. 170, 104 Miss. 165; Merchants Bank v. Scott County, 165 Miss. 91, 145 So. 908; Oliver v. Baird, 90 Miss. 718, 44 So. 35; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Oliver Construction Co. v. Crawford, 107 So. 877, 142 Miss. 490; Hancock County v. Cooper, 147 Miss. 57, 112 So. 682; Adams v. First National Bank, 103 Miss. 744, 60 So. 779; Board v. Ottley, 146 Miss. 118, 112 So. 466; Bank v. Attala County, 165 Miss. 560, 128 So. 192.
W.A. Strong, Jr., of Louisville, for appellee.
We earnestly insist that the order of the board does sufficiently adjudicate the jurisdictional fact that 20% or more of the qualified electors of Winston County had signed the petitions calling for said election.
Peoples Bank v. Attala County, 126 So. 192; Noxubee County v. Long, 106 So. 83.
Appellants contend that the order of the board of supervisors ordering the election should recite the evidence upon which the jurisdictional facts were found to exist. This contention of appellants has been decided adverse to them by the Supreme Court of Mississippi in the case of Johnson v. Board of Supervisors, 74 So. 321.
Clanton v. Board of Supervisors, 145 So. 108.
We most sincerely insist that the order passed by the board of supervisors ordering the election to be held, when judged according to the rule of the foregoing decisions of this court, sufficiently sets out the jurisdictional fact necessary to make it a valid order.
Ferguson v. Board of Suprs., Monroe County, 14 So. 81; Moore v. Board of Suprs., 118 So. 349; Power v. Robertson, 130 Miss. 188, 93 So. 769; Corbett v. Duncan, 63 Miss. 84; Loeb v. Duncan, 63 Miss. 89; Rogers v. Hahn, 63 Miss. 578.
We respectfully submit that under the rulings of the court in the above cases, the order of the board of supervisors of Winston County was a final order from which an appeal by bill of exceptions could have been taken or by certiorari. We further contend that the appellants, at the March meeting of the board of supervisors, could have introduced evidence to show that the petitions did not contain the required number of names and if the board decided against them, they could have appealed to the circuit court by bill of exceptions, provided the bill of exceptions was presented to the board at the March meeting but they could not appeal by bill of exceptions after the March meeting. Of course, at any time within six months from the March meeting they could have by certiorari appealed from the order of the board and had the record brought up to the circuit court.
Magee v. Jones, 63 Miss. 453; Hathorn v. Morgan, 65 So. 643; Board of Suprs., Marshall County v. Stevenson, 134 So. 142, 160 Miss. 372.
It is the contention of the appellees in this case that the appellants having failed to present the bill of exceptions to the president of the board of supervisors during the March meeting at which the order complained of was passed, that they lost their right to appeal by bill of exceptions as provided by Section 61 of the Code of 1930, and that they could not later by again going before the board and having the board enter another order, appeal from this later order by bill of exceptions.
Robinson v. Board of Supervisors, 65 So. 461, 107 Miss. 352.
We would respectfully call the court's attention to the fact that after the election of 1935 our corrupt practice law was passed, which disqualified more than 50% of the voters in this county. If this Honorable Court will take judicial notice of the number of votes polled in the election in Winston County, then we submit, that it will take judicial notice of the fact that the number of votes polled on August 25, 1936, in the senatorial and congressional election was 2598 in this county.
The beer election which is being contested in this law suit was held on the 20th day of April, 1937; therefore, the number of qualified electors in Winston County in 1936 would be more accurate than the number in 1935, for the reason that after the 1935 election the corrupt practice law was passed.
The record in this case, we think, conclusively shows that the board of supervisors in checking the names of the qualified electors who had signed the petition did not count those names that were not signed in the petitioners' own handwriting, therefore the question of whether the names signed in someone else's handwriting could be counted is not material; however, we would call the court's attention to the fact that Section 2, Chapter 171 of the Laws of 1934 does not require that the petitions be signed in the handwriting of the petitioners, but simply says that the election should be ordered by the board of supervisors "on a petition of twenty per centum (20%) of the duly qualified voters in such county."
We think it was entirely correct for the notice of this election to have been given by the board of supervisors instead of by the election commissioners and in this connection we would direct the court's attention to the case of Simpson County v. Burkett, 172 So. 329. In said case the court held that an election under the provisions of Section 2, Chapter 171 of the Laws of 1934 is controlled by Sections 310 and 311 of the Mississippi Code of 1930 and expressly said that "there are no other statutes to which resort may be had with any assurance and dependability as to closeness of analogy as these two as respects the submission to the voter of a county wide proposition of the nature of that herein involved."
Sections 310 and 311, Code of 1930.
We submit that under the provisions of Section 310 of the Code, it was the duty of the board of supervisors to call this election and to give the notice of same.
Perkins v. Carroway, 59 Miss. 222; 9 R.C.L. 993.
Our court has repeatedly held that in the absence of fraud, if an election is fairly conducted, mere irregularities will not invalidate the result.
State v. Greer, 130 So. 482; Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554, 7 So. 432; Shines v. Hamilton, 87 Miss. 384, 29 So. 1008.
It seems to us to be a very serious question as to whether or not appellants have any right to question the constitutionality of this act, for the reason, that the record, we think, shows that none of the appellants had a state license to sell beer and they were all operating in violation of law.
With reference as to whether or not Section 2, Chapter 171 of the Laws of 1934 violates Section 17 of the Constitution of Mississippi of 1890 or is unconstitutional, for the reason, that exceptors have vested rights in their beer license and equipment which are protected by the constitution. In this connection, we would respectfully direct the court's attention to Vol. 15 R.C.L. under the heading of intoxicating liquors where the following rule is laid down on page 285: "One who accepts a license must be deemed to consent to all proper conditions and restrictions which have been or may be imposed by the legislature in the interest of public morals and safety relative to the traffic or to the place in which he sells. In other words, the licensee takes subject to the reasonable exercise of the police power. The license is not a contract between the government and the licensee, and it creates no vested rights, any more than does the charter of the social club create rights beyond revocation for violation of the liquor laws; nor can any vested rights be created under a license by the acquisition and use of the instrumentalities necessary to the business."
15 R.C.L. 336; 33 C.J. 509; Reed v. Beale, 42 Miss. 472; Coulson v. Harris, 43 Miss. 728.
The question as to whether or not Chapter 171 of the Laws of 1934 is in conflict with Section 33 in that the provisions of said statute constitutes an unlawful delegation of the legislative power to the people is not properly before the court. The appellants did not raise this point in their pleadings nor did they argue this point before the board of supervisors or the circuit court; in fact, the first time that anything has been said in this case with reference to this statute being an unlawful delegation of legislative power or violative of Section 33 of the Constitution was when the able brief prepared by appellants was filed. We contend that having failed to raise this point in the lower court, appellants are not now in a position to have it considered on this appeal.
Adams v. Bd. of Suprs., Union County, 170 So. 684.
The constitutionality of local option laws has been most strongly assailed on the ground that they delegate legislative power to the people, and consequently conflict with the constitutional provisions which vest all legislative powers in the legislature. Both sides to the controversy practically agree that the legislature cannot abdicate the law-making power, nor delegate that power to the people. And both sides also agree that the legislature may pass laws to take effect on a future contingency. The question on which the difference of opinion exists is whether such laws do or do not delegate to the people the power, direct or indirect, of making laws. (Citing State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536; Gordon v. State, 46 Ohio St. 617, 23 N.E. 63, 6 L.R.A. 749). As might be expected, many exceedingly refined and artificial, if not specious arguments have been made on both sides of the question but on a review of the decisions, it appears that the better reason and the majority of the cases, which increase as time goes on, favor the side of constitutionality. (Citing Notes: 35 Am. Dec. 447; 114 A.S.R. 317; 1 L.R.A. (N.S.) 483; 15 L.R.A. (N.S.) 942; 1 Ann. Cas. 378; 14 Ann. Cas. 1001).
15 R C.L. 319; 33 C.J. 511, sec. 40; Schulherr v. Bordeaux, 8 So. 201; Alcorn v. Hamer, 38 Miss. 652; Board of Election Comrs. v. Davis, 59 So. 811; In re Opinion of the Justices, 166 So. 710; McPherson v. State Indiana, 90 N.W. 610, 31 L.R.A. (N.S.) 188; 1 L.R.A. (N.S.) 483; 15 L.R.A. (N.S.) 942.
This cause is appealed from a judgment of the circuit court of Winston county, affirming the action of the Board of Supervisors of that county on a petition to prohibit the sale of beer and wine in the county, and the vote of the people to prohibit such sale. Petitions containing the same wording were circulated and signed by the voters of the county, and treated as one petition, reading as follows: "We, the undersigned, constituting twenty per cent, or more, of the qualified electors of Winston county, Mississippi, do hereby respectfully petition your Honorable Board to order an election, as provided by House Bill No. 26 of the acts of the legislature of 1934, chapter 171 at the earliest possible time, first giving all notices required by law, for the purpose of submitting to the qualified electors of Winston county the question of whether the manufacture, storage, transportation, sale, distribution or receipt of beer and wine shall be permitted or excluded from Winston county, Mississippi, as is provided by said House Bill No. 26."
This petition was filed with the board, and at its meeting on the first day of March, 1937, an order was entered on the minutes of the board in the following words and figures: "At a regular meeting of the Board of Supervisors of Winston county, Mississippi, begun and held in the courthouse in the city of Louisville, Mississippi, on the first Monday in March, A.D., 1937 the same being the first day of March, the following proceedings were had and done, to wit: An order ordering an election to be held to determine whether a majority of the qualified electors of Winston county shall vote for or against the manufacture, storage, transportation, sale, distribution or receipt of beer and wine in Winston County: Whereas, a petition was filed with this board on the first day of March, 1937, asking this board to order an election as provided by House Bill No. 26 of the acts of the legislature of 1934 at the earliest possible time, first giving all notices required by law for the purpose of submitting to the qualified electors of Winston county the question of whether the manufacture, storage, transportation, sale, distribution or receipt of beer and wine shall be permitted or excluded from Winston County, Mississippi, as provided by said House Bill No. 26; and Whereas, this board has examined the petition and it appearing that the petition is signed by twenty per centum or more of the duly qualified electors of Winston county. It is, therefore, hereby ordered that the said petition is properly signed by twenty per centum or more of the qualified electors of said county. It is further ordered and adjudged that an election shall be held in all of the voting precincts of Winston county on the 20th day of April, 1937, as provided by law and at such election the matter shall be submitted to the qualified electors of Winston (county) of whether the manufacture, storage, transportation, sale, distribution, or receipt of beer and wine shall be permitted or excluded from Winston county, Mississippi, as is provided by said House Bill No. 26. It is further ordered that the clerk of this board shall publish notice of such election as provided by law for at least thirty days before April 20th, 1937, which notice shall give to the qualified electors of said county ample notice of said election. It is further ordered that the election commissioners shall have proper and suitable ballots prepared and shall do and perform all things necessary in the calling and holding of said election to make it a legal and valid election. Upon motion duly made and seconded the above order was unanimously adopted on this the 4th day of March, 1937. (Signed) Claude Richardson, President of the Board of Supervisors of Winston County, Mississippi. Present, Claude Richardson, President of the Board of Supervisors, and S.O. Clay, B.M. McCully, E.H. Boswell, W.E. Woodward and P.B. Dallis, Clerk, and E.E. White, Sheriff. Adjourned the fourth day of March, 1937."
On this order the clerk of the Board of Supervisors made publication, or handed it to the Winston County Journal for publication, as provided in section 310, Code of 1930. When the notice was published, beginning with the issue of the paper dated March 12, 1937, and in the issues of March 19, March 26, April 2, April 9, and April 16 of that year, said publication, being duly proved, was filed with the Board of Supervisors. The Election Commissioners, in accordance with the orders of the board, provided registration books and poll books, and appointed managers for the election at the several precincts; and the election was duly held at each of the precincts, with the exception of four, in which no election was held. The Election Commissioners certified to the Board of Supervisors the result of the election, and the board, at its May, 1937, meeting, entered an order upon its minutes. This order recited that at the meeting there came before the Board of Supervisors at its regular May meeting the matter of considering and passing on the necessary order regarding the election held in Winston county on the 20th day of April, 1937 — which order recited that the election was held pursuant to section 2, chapter 171, Laws of 1934, which is House Bill No. 26 referred to in the petition — and the board adjudicated that an election was held in the county to determine whether or not the transportation, storage, sale, distribution, receipt, and/or manufacture of wine or beer should be excluded from Winston county. The order further recited that the election to determine this question was properly submitted to the duly qualified electors of the county according to said law, and other laws of the state, and that in the election the majority of the qualified voters voted for the exclusion of wine and beer from Winston county. It further recited that the election was legal, notice having been given as required by law, published in the Winston County Journal, as shown by proof of publication on file; and set out on the minutes of the board are the notice of election and proof of publication, as follows:
"Notice of Election.
"Notice is hereby given that on the 20th day of April, 1937, an election will be held in all of the voting precincts of Winston county, Mississippi, within legal hours for the purpose of submitting to the qualified electors of Winston county whether or not the transportation, storage, sale, distribution, receipt, and/or manufacture of wine and beer shall be permitted in Winston county, Mississippi. This election is called pursuant to a petition filed and signed by more than 20% of the qualified electors of Winston county, Mississippi, requesting that election be held to determine whether or not said beverages should be excluded from said county and pursuant to an order of the Board of Supervisors, directing that said election be held, which order was adopted on the 4th day of March, 1937, and is recorded in Supervisors' Minutes Book 17, page 175 on file in the office of the Chancery Clerk of Winston county, Mississippi, and said election being authorized by House Bill No. 26 of the Acts of the Legislature of 1934.
"Board of Supervisors of Winston County, Mississippi.
"By Claude Richardson, President of the Board of Supervisors.
"P.B. Dallis, Clerk of the Board of Supervisors.
"Proof of Publication.
"State of Mississippi, Winston County.
"Personally appeared before me, E.E. Reynolds, Circuit Clerk in and for said county and state, W.C. Hight, publisher of a newspaper printed and published in the City of Louisville, County of Winston, State of Mississippi, called the Winston County Journal, who being duly sworn, deposes and says that the publication of a certain 'notice,' a true copy of which is hereunto affixed, has been made in said newspaper for six weeks consecutively, as follows:
"Issue dated March 12th, 1937, Vol. 45, No. 11.
"Issue dated March 19th, 1937, Vol. 45, No. 12.
"Issue dated March 26th, 1937, Vol. 45, No. 13.
"Issue dated April 2d 1937, Vol. 45, No. 14.
"Issue dated April 9th, 1937, Vol. 45, No. 15.
"Issue dated April 16th, 1937, Vol. 45, No. 16.
"W.C. Hight, Publisher.
"Given under my hand and seal this the 19th day of April, 1937.
"E.E. Reynolds, Circuit Clerk."
It is further recited in the order that the election officers and commissioners had performed every act necessary to comply with the law; that the Election Commissioners met at the office of the registrar, and carefully revised the registration and poll books for the several election districts five days before the election; and canvassed the returns and certified the result to the proper authorities; and that one of said certificates was then on file in the office of the chancery clerk, recorded in the minute book of the Board of Supervisors. The report set out the result of the election by precincts, giving the number voting for and against the proposition; and set out on the minutes a copy of the ballot, with the report of the Election Commissioners; and recited that it appeared to the satisfaction of the board that the election was fairly and legally conducted, that the will of the electors had been fairly expressed, and that the result of the election should be complied with. The report of the Election Commissioners, as set out on the minutes of the board, shows that 770 voted for, and 210 voted against, the proposition to exclude beer and wine.
The board thereupon entered the order declaring that it shall thereafter be unlawful to transport, store, sell, distribute, receive, and/or manufacture wine and beer in Winston county, Miss.; "provided, however, that nothing in this order shall prohibit the consumer from possessing or the taking into Winston county said wines and beers for his personal consumption or to prohibit any person of the right to make homemade wine for domestic or household use only." The order further recites that the board voted unanimously in favor of said order.
At the May, 1937, meeting of the Board of Supervisors, T.A. McCreary, H.V. McQuine, Luther B. Martin, J.B. Bankston and others filed a bill of exceptions to the action of the Board of Supervisors in ordering the election, and in passing the order prohibiting the sale of beers and wines within the county. They introduced the clerk of the circuit court and others as witnesses, and sought to show by the clerk that many of the signatures on the petitions were written in the same handwriting, and were not the individual or proper signatures of the persons whose names appeared thereon, contending that the petitions on file show on their face that many of these signatures were in the same handwriting. The clerk testified that if all the signatures which appeared to be in the same handwriting were eliminated from the petitions, there would still be 20 per cent of the qualified electors of Winston county petitioning for the election, and also that many of the signatures were compared by him and the members of the Board of Supervisors with the registration books and sheriff's records, and that the signatures of more than 20 per cent of the qualified electors of the county were on the petitions filed on the first of March. The clerk also testified that if all the voters at the four precincts at which no election was held, who were qualified to vote, had voted in favor of the sale of beer and wine, the result of the election would not have been changed.
It is contended that the petitions for the election as above set out were insufficient to confer jurisdiction on the Board of Supervisors to order the election. There was no bill of exceptions filed at the March term when the petition was filed, and the board entered an order, as shown above, adjudicating the fact that the petition was sufficient and contained the required 20 per cent or more qualified electors of the county. The board having before it a petition which recited that the signatures thereon were those of 20 per cent or more of the qualified electors, and the board having found such to be the fact, as stated in its order, and no appeal or certiorari having been taken from said order at the time, and no challenge being made of the correctness of the petition, and of the finding of the board at the March meeting, the matter was concluded. The proof in the record, made at the May meeting, shows that there were, in fact, more than 20 per cent of the qualified electors of the county who signed the petition, even eliminating those which appeared to be signed in the same handwriting; and that the precincts at which no election was held would not change the result, even though such precincts voted to retain the sale of beer and wine.
The proof does not show the number of registered and qualified voters on the first day of March, or prior thereto, but the order of the board then entered recited that the petitioners constituted more than 20 per cent of the qualified electors, and there was no showing that this was not a fact. It is argued that the court should take judicial notice of the primary election returns in 1935, and from that determine that the petitioners did not constitute 20 per cent or more of such qualified electors. The Court could not take judicial notice that the persons voting in the primary election of 1935 were qualified electors at that time, nor can it hold that they continued to be qualified thereafter. The primary election returns of 1936 were also referred to in the briefs, as showing only 2,500 voters in the county voting in such election; but we cannot find that such persons, so voting, were qualified electors; nor can we find this from the number of qualified electors in the county. The board was under the duty to see that the petition contained the required 20 per cent or more of signatures, and it did this; and its judgment is binding here, unless proof was made at the time and in the proper manner that such finding by the board was incorrect; there is nothing in the record which would indicate that this finding is not correct; the judgment of the board, being unchallenged at the time in any manner known to the law, must control.
It is urged on this appeal that the clerk of the Board of Supervisors handed the order of the board to hold an election to the printer of the newspaper in which the publication was made, and that the record does not show that a commission was issued from the board to the Election Commissioners, directing them to hold the election; and contending that the publication should have been made by the Election Commissioners, not by the clerk of the Board of Supervisors, or the Board of Supervisors themselves. The act of the Legislature above referred to, upon which the proceedings were founded, does not itself specify the details of how the election shall be held, but directs it to be in accordance with the election laws of the state. It has heretofore been held the case of Simpson County v. Burkett et al., 178 Miss. 44, 172 So. 329, that the provisions of sections 310 and 311 of the Code of 1930 applied, and are the proper sections governing the publication. It will be seen from this case that the publication under chapter 171, Laws of 1934, is controlled by section 310 of the Code, which reads as follows: "Unless otherwise specifically required by law, the board of supervisors of any county shall upon the filing of a petition touching any matter affecting the entire county and over which it has jurisdiction, signed by twenty-five per cent. of the qualified electors of the county, either pass an order putting said proposition in force and effect or immediately submit the same to a vote of the qualified electors of the county, after giving thirty days' notice of said election, said notice to contain a statement of the proposition to be voted on at said election. If said election shall result in favor of the proposition petitioned for, the board of supervisors shall pass the necessary order, to put the said proposition in force and effect. In the event the election shall result against the proposition submitted, no other election shall be held on the same, or substantially the same proposition within twelve months of the date of the prior election: Provided that this section shall not apply to the creation of taxing districts."
Chapter 171, Laws of 1934, provides for 20 per cent instead of 25 per cent of the qualified electors. It will be noticed from the section above set out that the Board of Supervisors had authority to order and hold this election and to give the notice. However, this would be immaterial under the facts of this case, for the reason that the Election Commissioners proceeded, in conformity with the law, to hold the election and discharge the duty enjoined upon them in that regard. Publication was made in the Winston County Journal for the period required under section 310 of the Code, and the voters had full information of the proposition to be voted upon; and the election was held by and under authority of the regular election officers of the county.
In chapter 171, section 2, Laws of 1934, it is provided further: "That an election to determine whether such transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages shall be excluded from any county in the state, shall on a petition of twenty per centum (20%) of the duly qualified voters of such county, be ordered by the board of supervisors thereof, for such county only; but no election on the question shall be held in any one county oftener than once in two years." It will be noticed from this section that the election is to be ordered by the Board of Supervisors; also, that there is no requirement in this act that the petitioners shall sign the petition, as was required in section 1610, Annotated Code of 1892, bringing forward the act of 1886, under which the case of Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81, was decided. The words in section 1610, "signed by them," were of a mandatory character, and prohibited the signature being made by any other person, as construed by the court; but the present act does not prohibit the voter from authorizing some other person to sign for him. However, this is immaterial in the present case, for if we apply the strict rule announced in the Ferguson Case, supra, and required by section 1610 of the Annotated Code of 1892, the finding of the board concludes the matter, since at that session no challenge was made by any of the petitioners or other persons of the correctness of such finding. The only difference between a court of special and limited jurisdiction, and a court of general jurisdiction, is that the facts conferring jurisdiction must be affirmatively found to exist in courts of special and limited jurisdiction, and such facts showing jurisdiction should appear upon the record or minutes, while in a court of general jurisdiction the presumption is that the necessary facts existed where the judgment was rendered. Consequently, when the board finds a jurisdictional fact, such judgment is entitled to the same force and effect as that of a court of general jurisdiction.
Where a petition must be circulated, requiring signatures of a given percentage of the qualified electors before action is taken, the circulation of the petition is usually a matter of notoriety, bringing information to the public of what is proposed to be done, and any person interested may appear before the proper board or body, and make any objection thereto that they may consider proper. In dealing with boards or courts administered by men unlearned in technical requirements, strict construction of their orders should not be had. "The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law." Noxubee County v. Long, 141 Miss. 72, 106 So. 83, 85. It is necessary for the jurisdictional facts to appear in the record; but the language in which such recitals are made need not be such as a skillful lawyer would use.
We find no error in the orders of the board dealing with this election, in any part of the proceedings, which would render their action void. The appellant attacked the constitutionality of the act here involved, on two grounds; one, that the Legislature unlawfully delegated legislative power to the people, authorizing them to determine what the law should be in a particular locality, by a vote of the people. It is contended that while the Legislature may fix the conditions under which the law will take effect, it cannot authorize a law, when displaced, to be restored or changed by a vote of the people. It is so well settled in this state that the operation of the law may depend upon the vote of the people, that it would appear unnecessary to further enlarge upon that subject. It was decided in Alcorn v. Hamer, 38 Miss. 652, that the power to enact laws necessarily includes the right of the lawmaking power to prescribe the conditions upon which the law, in a given case, shall come into operation or be defeated; and this contingency may as well be the result in the case of a locality affected by the law, as in any other. The above case was decided in 1859, and has been approved in subsequent cases. See Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201; Board of Election Commissioners v. Davis, 102 Miss. 497, 59 So. 811; W.S.F. Tatum et al. v. Leon Wheeless et al., Miss., 178 So. 95.
It is also contended that the order of the board prohibiting further sales of wine and beer by the appellants deprived them of their property without due process of law. From an early date in this state it has been the law that where the Legislature can prohibit the sale of a commodity altogether, neither licensing the business for a limited period, nor any mere license, will prevent the repeal of the law; nor will it prevent prohibiting the sale of a commodity within the local territory, although previously licensed. The party taking such license, takes it subject to the police power; and the fact that the appellants, or some of them, may have had a license which had not expired when the order of the board went into effect, did not render the board's action a violation of the constitutional provision as to taking property without due process of law. A license is not a contract, but a mere privilege, revocable whenever public authority, authorized to do so, may exercise that power. 15 R.C.L. 285, 336; 33 C.J. 509, 519; Reed v. Beall, 42 Miss. 472; Coulson v. Harris, 43 Miss. 728; Moore v. State, 48 Miss. 147, 148, 12 Am. Rep. 367.
The other contentions of appellant are without merit, and this opinion will not be prolonged to take notice of the various contentions in this cause.
The judgment of the court below will be affirmed.
Affirmed.